It is well-established that the decision to appoint an amicus rests within the broad discretion of the trial court. See Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982). The true issue presented by this motion, however, is not whether to appoint an amicus, but whether to appoint an independent representative. It appears inevitable that the amicus seeking appointment in this case will conclude that appointment of an independent representative is warranted. See Proposed Amicus Curiae's Reply at 9. Even if the proposed amicus were not predisposed in this manner, it is no better equipped than the Court to determine the need for an appointed representative in this case. The voluminous Administrative Record at hand is adequate to evaluate the arguments put forth by Firestone and PBGC regarding the proper disposition of the nine million dollars of residual assets, a point conceded by the proposed amicus at oral argument. Consequently, the Court will look beyond the amicus issue and consider the propriety of appointing an independent representative for the participants.

In Delgrosso v. Spang & Co., 769 F.2d 928 (3d Cir. 1985), the plaintiffs, pension plan participants, challenged the Plan Administrator's attempt to recover the surplus assets of an amended fund. The district court granted summary judgment in favor of the employer. The third circuit reversed much of the district court's decision, finding that the pension plan specifically precluded reversion of the funds to the employer and that the employer violated its fiduciary duty as Plan Administrator. The Third Circuit's decision called for appointment of an independent administrator to determine how the residual assets of the fund should be distributed. Because the suit was brought by non-vested participants, the Third Circuit directed the district court to appoint a representative for the vested participants to represent them before the district court when it selected an independent plan administrator.

These two cases suggest that the Court has the power to appoint a representative, but provide little guidance as to what standards the Court should employ in evaluating this appointment request. In other contexts, parties are added if they have interests at stake that are not adequately represented. See Fed. R. Civ. P. 19 & 24. The infrequent use by courts of their power to appoint counsel suggests that some additional factor should be present, such as the inability of the parties to secure representation on their own or as a class, or a unique opportunity to expeditiously and fairly resolve related claims. See Friends For All Children, 567 F. Supp. at 795-96 (appointing guardian ad litem where infants' parents resided in Europe and court intended to resolve numerous related suits expeditiously). The Court will now evaluate the presence of these factors in the instant case.

B. Interests at Stake

The participants' interests at stake in this litigation are whatever rights they have to the nine million dollars in surplus assets sought by Firestone. What does not revert to Firestone will almost certainly be distributed to the participants. Thus, they have substantial interests at stake if this litigation will impair their rights to those assets.

If Firestone succeeds in overturning the PBGC's determination in this action, the participants probably could not then seek to uphold or reinstate the PBGC's determination in another setting. Therefore, the participants' interests are at stake. That is not to say that resolution of this case in favor of Firestone would preclude any claims the participants might have to the nine million dollars. But the PBGC's decision suggests that the participants may be able to recover at least some of the residual assets, and it would be to their advantage to have the PBGC's decision upheld by this Court.

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